231 / 521
Active Cooperation/Leniency Regulation (“Leniency Regulation”) was
published in the Official Gazette dated 15.02.2009 and numbered
27142
5
. Therefore, the integration of such provision in the Draft Act
constitutes the legal grounds for the Leniency Regulation.
However, the Leniency Regulation includes the terms “active col-
laboration” and “leniency” and not the term “conciliation”. Thus, in
order to create uniformity within the competition legislation, it would
be more appropriate to use the term “active collaboration” or “lenien-
cy” in lieu of “conciliation”.
Sanctions. In parallel with the Competition Act, the Draft Act fore-
sees both penal and legal sanctions. In this section, sanctions applied
by the Board to undertakings and/or associations of undertakings are
examined.
•
Penal Sanction
.
No essential amendment is made in the Draft
Act concerning penal sanctions. In other words, a fine may be
imposed by the Board “
up to ten percent of annual gross rev-
enues of undertakings and associations of undertakings or
members of such associations which generate by the end of the
financial year preceding the decision, or which generate by the
end of the financial year closest to the date of the decision if it
would not be possible to calculate it
”. Nevertheless, this provi-
sion is neither in compliance with EU competition rules, nor
with general rules of law since it is not clear whether “the annu-
al gross revenue” means the total annual gross revenue or the
annual gross revenue generated in the line of business, where
the violation has occurred. This provision is not in compliance
with EU competition rules since it is clearly stated under EU
competition legislation that total annual gross revenue or the
annual gross revenue generated in the line of business, where
the violation has occurred, should be taken into account. Such
provision is neither in compliance with the “Draft Regulation
on Fines to be imposed in cases of Violation of the Act on the
COMPETITION LAW
215
5
To access to the Leniency Regulation, please see
http://www.rekabet.gov.tr/File/?path=ROOT%2fDocuments%2fY%25c3%25b6netmelik%2fyonetmelik8.pdf (accessed on: 06.02.2014).